Section 609 of the FY 1996 Omnibus Appropriations Act

A provision of an appropriations law purporting to condition the use of funds to pay for the United 

States’ diplomatic representation to Vietnam on the President’s making a particular detailed certification “ within 60 days” does not require the cutoff of the covered funds until such time as the 

President has made the certification, but instead permits use of the funds to maintain diplomatic 

representation in Vietnam for 60 days after enactment.

Taken as a whole, the provision impermissibly impairs the exercise of the core Presidential power 

to recognize, and maintain diplomatic relations with, a foreign government. Hence, the provision 

is unconstitutional and without legal force or effect.

May 15, 1996

M e m o r a n d u m O p in io n f o r t h e L e g a l A d v is e r

D e p a r t m e n t o f S t a t e

You have sought our advice on section 609 of the Fiscal Year 1996 Omnibus 

Appropriations Act (H.R. 3019), Pub. L. No. 104-134, 104 Stat. 1321, 1321— 

63 (“ the Act” ), which the President signed into law on April 26, 1996.1 That 

section purports to condition the use of appropriated funds to pay for the United 

States’ diplomatic representation to Vietnam on the President’s making a detailed 

certification “ within 60 days.” You have asked whether section 609 prohibits 

the use of appropriated funds for this purpose from the moment the Act was signed 

into law, unless the President, within 60 days thereafter, provides the requisite 

certification, and so enables diplomatic relations between the two countries to resume. 2

At the very least, section 609 does not require a cutoff of funds until the President makes the certification. Rather, the use of appropriated funds for maintaining 

diplomatic representation to Vietnam remains lawful and proper during the sixty 

days after enactment, so that the President, during that period, may gather and 

assess the facts needed to enable him to decide whether or not to provide the 

certification, without disrupting the United States’ existing diplomatic relations 

with Vietnam in the interval. This construction follows the natural meaning of 

the language of the section, comports with the rational and efficient use of government resources, and reduces the likelihood of unnecessary diplomatic friction.

More importantly, we believe that section 609, taken as a whole, impermissibly 

impairs the exercise of a core Presidential power— the authority to recognize,

>The section originated as section 609 of the Commerce, Justice, State and the Judiciary Appropriations Bill 

for Fiscal Year 1996 (H.R. 2076).

2 Several members of Congress have written to the Secretary o f State to advocate this view of the provision’s 

meaning. See Letter for the Honorable Warren Christopher, Secretary of State, from Senator Bob Smith, et al. (Apr. 

26, 1996) ("Congressional Letter” ). In support of their interpretation, the writers attach a two paragraph opinion 

from an Associate General Counsel of the General Accounting Office. See Letter for the Honorable Robert C. Smith, 

United States Senate, from Gary I. Kepplinger, Associate General Counsel, General Accounting Office (Apr. 26, 

1996) (“ GAO Opinion” ).

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and to maintain diplomatic relations with, a foreign government.3 Accordingly, 

section 609 is unconstitutional and without legal force or effect.

Section 609, in its entirety, reads as follows:

None of the funds appropriated or otherwise made available by 

this Act may be obligated or expended to pay for any cost incurred 

for (1) opening or operating any United States diplomatic or consular post in the Socialist Republic of Vietnam that was not operating on July 11, 1995; (2) expanding any United States diplomatic 

or consular post in the Socialist Republic of Vietnam that was operating on July 11, 1995; or (3) increasing the total number of personnel assigned to United States diplomatic or consular posts in 

the Socialist Republic of Vietnam above the levels existing on July 

11, 1995, unless the President certifies within 60 days, based upon 

all information available to the United States Government that the 

Government of the Socialist Republic of Vietnam is cooperating 

in full faith with the United States in the following four areas:

(1) Resolving discrepancy cases, live sightings and field activities,

(2) Recovering and repatriating American remains,

(3) Accelerating efforts to provide documents that will help 

lead to fullest possible accounting of POW/MIA’s,

(4) Providing further assistance in implementing trilateral investigations with Laos.

The statutory reference to “ July 11, 1995” keys the provisions of the bill to 

the date of the President’s offer to establish diplomatic relations with Vietnam. 

See Remarks by the President Announcing the Normalization o f Diplomatic Relations with Vietnam, 2 Pub. Papers of William J. Clinton 1073 (July 11, 1995). 

In announcing that offer, the President stated that from the beginning of his Administration, “ any improvement in relationships between America and Vietnam 

has depended upon making progress on the issue of Americans who were missing 

in action or held as prisoners of war.” Id. Noting that he had lifted the trade 

embargo against Vietnam seventeen months earlier “ in response to their cooperation and to enhance our efforts to secure the remains of lost Americans and to

3 There is yet another apparent constitutional flaw in section 609: it purports to prescribe to the President the 

m anner in which he must proceed to recover the remains o f Americans, and to account for POWs and MlAs, in 

Vietnam. Such detailed prescriptions may well encroach on the President’s constitutional authority as Commander 

in Chief. We do not press that objection here.

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Section 609 o f the FY 1996 Omnibus Appropriations Act

determine the fate of those whose remains have not been found,” id., the President 

stated that the Government of Vietnam had, in the interval, “ taken important steps 

to help us resolve many cases,” including releasing the remains of Americans, 

delivering documents that shed light on the fate of MIAs, assisting efforts to reduce discrepancy cases, and stepping up cooperation with Laos, where many 

Americans were lost. Id. The President stated that “ [n]ever before in the history 

of warfare has such an extensive effort been made to resolve the fate of soldiers 

who did not return,” but he added that “ normalization of our relations with Vietnam is not the end of our effort.” Id. On July 12, 1995, the Government of Vietnam agreed to diplomatic relations with the United States. Soon thereafter, the 

United States Liaison Office in Vietnam was upgraded to a Diplomatic Post.

The four certification requirements in section 609 relate, respectively, to resolving discrepancy cases, recovering American remains, accelerating the provision 

of documents relating to POWs and MIAs, and promoting trilateral investigations 

with Laos. All four conditions derive directly from a July 2, 1993 Presidential 

statement that set forth the areas in which the United States expected to see 

progress before expanding diplomatic relations with the Government of Vietnam. 

See Statement by the President on United States Policy Toward Vietnam, 1 Pub. 

Papers of William J. Clinton 990 (July 2, 1993).4 The State Department advises 

us that later statements and testimony have referred, in varying language, to the 

same four areas, and that, since July, 1993, progress in United States-Vietnamese 

relations has been measured in terms of the satisfaction of the four criteria.

I.

Section 609 provides that “ [n]one of the funds appropriated or otherwise made 

available by this Act may be obligated or expended to pay for any cost incurred” 

for the stated purposes, “ unless the President certifies within 60 days, based upon 

all information available to the United States Government that the Government 

of the Socialist Republic of Vietnam is cooperating in full faith with the United 

States” in four areas relating to POWs and MIAs. The Congressional Letter, sent 

just after the bill was passed and signed, argues that the provision forbids any 

expenditure of funds before the President makes a certification. The letter relies 

on and attaches a six-sentence opinion of the Associate General Counsel of the 

General Accounting Office. According to that opinion, the “ plain language” of 

the section leads to the conclusion that “ no obligations or expenditures may be

4 In that statement, the President announced that Vietnam would have access to the International Monetary Fund, 

and that he would be sending a high-level delegation to Vietnam. He explained that “ any further steps in relations 

between our two nations depend on tangible progress on the outstanding POW/M1A cases," and said that the delegation would make clear that “ (w]e insist upon efforts by the Vietnamese in four key areas,” including (1) remains,

(2) discrepancy cases, (3) investigations with Laos and (4) archival material. Id. at 991. These four conditions are 

substantially the same as those that section 609 treats as mandates that the President must certify Vietnam has 

met.

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made prior to the President’s certification.” The Congressional Letter also refers 

to, but does not supply, an opinion of the Senate Legislative Counsel.

We conclude that, under the better reading, section 609 would not cut off funds 

until 60 days have elapsed. Section 609 purports to forbid obligations or expenditures “ unless the President certifies within 60 days” that certain facts exist; the 

provision does not say that funds may not be obligated or expended “ until” the 

President certifies or unless the President “ has certified.” The most natural reading of the language actually used is that funds are to be cut off if sixty days 

pass without the Presidential certification.

Our reading is supported by section 609’s requirement that the President make 

his decision “ based upon all information available to the United States Government.” The statute thus contemplates a wide-ranging inquiry, covering every 

agency of the Government that might have relevant information. To require a 

termination of funds before the 60-day period elapsed would push the President 

toward making a hasty and ill-considered decision. Such a decision would conflict 

with the full inquiry that section 609 requires.

Furthermore, the Supreme Court has cautioned that Congress must express its 

intent clearly before a statute is read “ so as to give rise to a serious question 

of separation of powers which in turn would . . . implicate[] sensitive issues 

of the authority of the Executive over relations with foreign nations.” NLRB v. 

Catholic Bishop o f Chicago, 440 U.S. 490, 500 (1979) (describing McCulloch

v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1963)). See also

Public Citizen v. United States D ep't o f Justice, 491 U.S. 440, 465-67 (1989); 

Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). Section 609, if read 

to order an immediate cut off of funds, would impede the President’s conduct 

of foreign affairs. On that reading, section 609 could require largely ending operations at the Embassy pending the certification and then starting up operations 

again after a certification was made. Such a procedure not only would entail severe 

administrative difficulty, but also could cause diplomatic embarrassment. Such 

lurches from full to lesser diplomatic relations and back again would call into 

question the reliability and stability of the United States’ conduct of foreign affairs. As we discuss below, we believe that section 609 encroaches on the President’s constitutional powers and is therefore invalid. At the least, however, the 

“ within 60 days” language of section 609 should be construed in a manner that 

avoids seriously impairing the President in the exercise of his constitutional responsibilities.

In offering a different interpretation, the GAO Opinion relies on the “ plain 

language” of the section. However, the “ plain language” does not support the 

GAO Opinion. Furthermore, even if (contrary to our view) section 609 in at least 

some circumstances might cut off funds immediately, the GAO Opinion’s “ plain 

language” is not the literal language of section 609. The literal language of section 609 would be that expenditures made even before the Presidential certification

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Section 609 o f the FY 1996 Omnibus Appropriations Act

would be lawful, as long as the President made the certification at any time during 

the 60-day period. The GAO Opinion simply asserts that the “ plain language” 

makes a Presidential certification “ a precondition to the availability of the funds,” 

without explaining why this result follows.

When section 609 was being considered by Congress, it would have been a 

simple matter to draft the language to achieve the result that the authors of the 

Congressional Letter now desire. Such language could have stated— but did not 

state — that no funds appropriated or otherwise made available by the Act could 

be obligated or expended “ unless the President has previously certified” that the 

requisite conditions had been met. Instead of seeking to amend the provision, the 

authors waited until the legislation was enacted and then sought to place a particular interpretation on the language. As post-enactment legislative history, the 

Congressional Letter sheds no light on the meaning of the language. See, e.g.,

Sullivan v. Finkelstein, 496 U.S. 617, 631-32 (1990) (Scalia, J., concurring in 

part); Tataranowicz v. Sullivan, 959 F.2d 268, 278 n.6 (D.C. Cir. 1992), cert,

denied, 506 U.S. 1048 (1993); Michigan United Conservation Clubs v. Lujan,

949 F.2d 202, 208-10 (6th Cir. 1991); Multnomah Legal Servs. Workers Union

v. Legal Services Corp., 936 F.2d 1547, 1555 (9th Cir. 1991).5

II.

More fundamentally, section 609’s prohibition on the use of appropriated funds 

to maintain diplomatic relations with Vietnam unless the President provides Congress with a detailed certification is an unconstitutional condition on the exercise 

of the President’s power to control the recognition and non-recognition of foreign 

governments— a power that flows directly from his textually-committed authority 

to receive ambassadors, U.S. Const, art. II, § 3 .6 It is by now firmly established 

that “ [p]olitical recognition is exclusively a function of the Executive.” Banco

Nacional de Cuba v. Sabbatino, 376 U.S. 398, 410 (1964).7 As President Woodrow Wilson (himself a leading constitutional scholar) stated in a message to Congress in 1919, “ the initiative in directing the relations of our Government with 

foreign governments is assigned by the Constitution to the Executive, and to the

5 If the “ plain language" of section 609 required an immediate termination of funds, it is hard to see why the 

authors of the Congressional Letter thought it necessary to seek an opinion on the point from the GAO. The insistence 

that the “ plain language" supports their view rings hollow.

6 Relaled)y, of course, the President has the power to appoint Ambassadors, and to make treaties, by and with 

the advice and consent of the Senate. U.S. Const, ait. II, §2, cl. 2.

7 See also United Slates v. Belmont, 301 U.S. 324, 330 (1937); Goldwater v. Carter, 444 U.S. 996, 1007 (1979) 

(Brennan, J., dissenting); Can v. United States, 14 F.3d 160, 163 (2d Cir. 1994); Phelps v. Reagan, 812 F.2d 1293, 

1294 (10th Cir. 1987); Americans United for Separation o f Church and State v. Reagan, 786 F.2d 194, 202 (3d 

Cir.), cert, denied, 479 U.S. 914 (1986); Republic o f Vietnam v. Pfizer, Inc., 556 F.2d 892, 894 (8th Cir. 1977); 

Restatement (Third) o f the Foreign Relations Law o f the United States §204 (1987); 1 Green Hackworth, Digest

o f Inter national Law 161-62(1940).

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Executive, only.” 8 Accordingly, Congress may not determine the conditions that 

a foreign government must satisfy in order to be recognized by, or to enter into 

normal diplomatic relations with, the United States.

The Executive’s recognition power9 necessarily subsumes within itself the 

power to withhold or deny recognition, to determine the conditions on which recognition will be accorded, and to define the nature and extent of diplomatic contacts with an as-yet unrecognized government.10 The United States’ diplomatic 

history has illustrated, on many occasions, the importance of the Executive’s powers to withhold or condition recognition.11 Just as Congress may not usurp the 

Executive’s power by attempting to compel the President affirmatively to recognize a particular government as the sole sovereign of a disputed area,12 so also 

it may not ordain that the Executive is to withhold recognition, or that the Executive is not to accord recognition unless the foreign government concerned complies 

with requirements that Congress, rather than the Executive, imposes. Were Con8 President W oodrow Wilson to Senator A lbert B. Fall, Dec. 8, 1919, reprinted in S. Doc. No. 66-285, at 843D 

(1920). Similarly, when the Senate Foreign Relations Committee informed the executive branch during President 

G rover C leveland's second Administration that it proposed to report out a resolution that purported to recognize 

the independence of a Republic of Cuba, the Secretary of State, Richard Olney, responded that that resolution, if 

adopted, could only be regarded as "an expression of opinion,” because *‘[t]he power to recognize the so-called 

Republic o f Cuba as an independent state rests exclusively with the Executive.” See Eugene V. Rostow, Great

Cases Make Bad Law; The War Powers Act, 50 Tex. L. Rev. 833, 866 (1972) (quoting Olney statement).

9 “ R ecognition” has been defined as “ the act of the Executive taking note of the facts [e.g., that a particular 

government holds power in a certain territory] and indicating a willingness to allow all the legal consequences of 

that noting to operate. These are consequences in international law. W hether consequences also follow in municipal 

law is a matter for municipal law itself to determine.” 1 Daniel Patrick O ’Connell, International Law 128 (1970) 

(footnote omitted). The Executive may engage in diplomatic or other dealings with a government that it does not 

recognize, for example by entering into treaties or other agreements with that government.

,0 The President’s recognition power “ uicludes the power to determine the policy which is to govern the question 

o f recognition.” United States v. Pink, 315 U.S. 203, 229 (1942). The courts have given effect both to the Executive’s 

refusal to recognize particular governments, and to the policies underlying such non-recognition. See, e.g., Latvian

State Cargo & Passenger S.S. Line v. McGrath, 188 F.2d 1000, 1003 (D.C. Cir.), cert, denied, 342 U.S. 816 (1951); 

The Maret, 145 F.2d 431, 442 (3d Cir. 1944); Russian Republic v. Cibrario, 235 N.Y. 255, 263-65 (1923).

11 Such occasions include President Wilson’s refusal to recognize the Huerta government of Mexico in 1913 (which 

contributed to its downfall a year later); the refusal of W ilson’s successors until President Franklin Roosevelt to 

recognize the Union of Soviet Socialist Republics; the Hoover Administration’s non-recognition of the Japanese 

puppet state of Manchukuo in 1932; and the non-recognition o f the People’s Republic of China from the Truman 

Administration until President Nixon’s de facto recognition o f that government in 1972. See Congressional Research 

Service, The Constitution o f the Untied States o f America: Analysis and Interpretation, S. Doc. No. 99-16, at 567 

(1987). Although originally it was the policy o f the United States to “ accept any foreign government existing de

facto, respecting every fact as supreme over all theory,” Construction o f the Mesilla Treaty, 7 Op. A tt’y Gen. 

582, 587 (1855), recognition has come to depend on a variety o f foreign policy concerns. Thus, the United States 

has at times withheld recognition unless the foreign government concerned has agreed to comply with particular 

conditions. See, e.g., Establishment of Diplomatic Relations With Albania, 13 Dep’t St. Bull. 767 (1945); American

Mission to Albania Withdrawn, 15 Dep’t St. Bull. 913 (1946); American Support o f Free Elections in Eastern Europe,

17 D ep’t St. Bull. 407, 409 (1947) (non-recognition o f Albania for failure to satisfy conditions required by Executive). 

In this Administration, the President has stated that he had used the possibility of United States recognition of 

the Government o f Angola as “ leverage towards promoting an end to the civil war and hostilities” in that country. 

Remarks and an Exchange With Reporters Prior to Discussions With Archbishop Desmond Tutu, 1 Pub. Papers 

o f W illiam J. Clinton 704, 704 (May 19, 1993). See also Louis L. Jaffe, Judicial Aspects of Foreign Relations

107-10 (1933) (through non-recognition, United States at various times pursued policy goal of discouraging violent 

revolutions against existing governments); U.S. Policy on Nonrecognition o f Communist China, 39 Dep’t St. Bull. 

385 (1958) (bases of United States policy on nonrecognition o f Communist China).

12 See Bill to Relocate United States Embassy from Tel Aviv to Jerusalem, 19 Op. O.L.C. 123 (1995).

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Section 609 o f the FY 1996 Omnibus Appropriations Act

gress to seek to direct and control the exercise of the recognition power in any 

of these ways, it would violate separation of powers principles.

The Supreme Court has identified two fashions in which Congress may 

impermissibly encroach on the Executive power. First, Congress may attempt to 

exercise itself one of the functions that the Constitution commits solely to the 

Executive, thus “ posting] a ‘danger of congressional usurpation of Executive 

Branch functions.’ ” Morrison v. Olson, 487 U.S. 654, 694 (1988) (quoting Bowsher v. Synar, 478 U.S. 714, 727 (1986)). Second, Congress may not attempt 

to “ ‘impermissibly undermine’ the powers of the Executive Branch, [Commodity

Futures Trading Comm’n v.] Schor, [478 U.S. 833 (1986)] at 856, or *disrupt[] 

the proper balance between the coordinate branches [by] preventing] the Executive Branch from accomplishing its constitutionally assigned functions,’ Nixon v. 

Administrator o f General Services, [433 U.S. 425 (1977)] at 433.” Morrison, 487 

U.S. at 695.

Section 609 both poses a “ danger of congressional usurpation” of the Executive 

function of recognition, and “ impermissibly undermine[s]” that authority. In effect, section 609 requires the President either (1) to reduce our diplomatic presence 

in, and contacts with, Vietnam to the levels that existed immediately before his 

July 11,1995 offer to normalize relations, or else (2) to go forward with normalizing relations, but only if Vietnam satisfies specific conditions that Congress, 

rather than the Executive, demands. This Congress may not do: if the United 

States is to impose conditions precedent on Vietnam for being recognized, it is 

for the President, not Congress, to decide what those conditions are.13

Specifically, section 609 purports to impose a certification requirement on the 

availability of funds (1) to “ open[] or operat[e]” a diplomatic or consular post 

in Vietnam that was not operating on the date the President offered to establish 

diplomatic relations with that country, (2) to “ expand[]” any such post that was 

operating in Vietnam before that date, or (3) to augment the number of personnel 

assigned to United States diplomatic or consular posts in Vietnam before that date. 

In our view, each of these three restrictions is unconstitutional. That the first two 

restrictions (on opening, operating or expanding any diplomatic or consular post 

in Vietnam) overtly infringe on the President’s recognition power is, we think, 

clear.14 While the unconstitutionality of the third restriction (on the number of

13 The fact that the conditions Congress imposed in section 609 are similar to those that the President himself 

set forth in July, 1993 does not alter the analysis. The President retained the discretion to revise his criteria, apply 

them flexibly, or take account of other unrelated factors, in making an overall judgment as to the wisdom of normalizing our relations with Vietnam. As codified in section 609, however, the criteria have been transformed into hardand-fast requirements that the President must certify Vietnam to have met before our diplomatic relations with its 

government can be normalized. Section 609 precludes the President from making the finely-shaded, situation-sensitive 

judgments that are necessary for conducting a successful recognition policy.

14 An 1855 opinion by Attorney General Caleb Cushing, though rendered on grounds of the Appointments Clause 

rather than on the basis of the recognition power, supports our conclusion that Congress may not attempt to dictate 

to the President the level o f our diplomatic representation to Vietnam. Attorney General Cushing addressed himself 

to legislation that stated that, from and alter a date certain, the President “ shall/* by and with the Senate’s advice 

and consent, “ appoint representatives of the grade of envoys extraordinary and ministers plenipotentiary” to desContinued

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personnel assigned to such posts) may be less patent, we think that, in the particular context surrounding the enactment of section 609, it too impermissibly invades a core Presidential power. As we have explained, section 609 was enacted 

against the backdrop of the progress that the Government of Vietnam had made 

between July, 1993 and July, 1995 in resolving POW/MIA issues, the President’s 

July 11, 1995 offer to the Government of Vietnam, that government’s response 

to it, and the ensuing diplomatic dealings between the two nations. Indeed, one 

of the signatories of the Congressional Letter explicitly stated that the purpose 

of a prior version of section 609 was to “ bar[] the use of Federal funds for 

implementing the President’s ill-considered, pre-mature [sic] decision to expand 

diplomatic relations with Vietnam.” 141 Cong. Rec. H7765 (daily ed. July 26, 

1995) (remarks of Rep. Gilman).15 Thus, the unmistakeable intent and effect of 

section 609’s restrictions, taken as a whole, are to return the United States’ diplomatic relations with Vietnam to the very limited level that existed before the President’s offer, or else to require that Vietnam demonstrably satisfy requirements 

imposed by legislative mandate. Thus, even if Congress may, for reasons of economy or efficiency, reduce the size of embassy staff, it may not do so as part 

of an effort, as here, to direct and control the recognition power in a particular 

instance.

HI.

The fact that in section 609 Congress is seeking to control the exercise of the 

Presidential recognition power indirectly, through the appropriations process, rather than as a direct mandate, does not change our conclusion. Broad as Congress’s 

spending power undoubtedly is, it is clear that Congress may not deploy it to 

accomplish unconstitutional ends.16 In particular, as our Office has insisted over

ignated countries. Ambassadors and other Public Ministers o f the United States, 7 Op. A tt’y Gen. 186, 214 (1855). 

The Attorney General opined that in this context, 14 'shall* must be construed to signify ‘may;’ for Congress cannot 

by law constitutionally require the President to make removals or appointments of public ministers on a given day, 

or to make such appointments of a prescribed rank, or to make or not make them at this or that place. . . . [W]e 

are therefore not to read this act as requiring the President to appoint and maintain a minister of the rank of envoy 

extraordinary at the courts o f London, Paris, St. Petersburg, Madrid, Mexico, Copenhagen, regardless of what may, 

in his judgment and that o f the Senate, be the necessities or interests of the public service; nor to read it as forbidding 

him to leave either o f those legations, or any other, in the hands of a mere charge d ’affaires.” Id. at 217-18. 

In the Attorney G eneral’s view, the President had “ the absolute discretion at all times . . . to appoint a public 

minister o f such degree as he and [the Senate] might please for any particular mission, or not to appoint any.” 

Id. at 219.

15 See also Some in Congress oppose recognition o f Vietnam, The Baltimore Sun, July 11, 1995, at 1A, available

in 1995 W L 2452091 (reporting statements by members of Congress threatening to bar use of Federal funds for 

diplomatic relations with Vietnam).

l6See United States v. Klein, 80 U.S. (13 Wall.) 128 (1872) (appropriations act unconstitutionally intruded on 

President’s pardon power); United States v. Lovett, 328 U.S. 303, 316 (1946) (appropriations power misused to 

impose bill o f attainder); cf. Metropolitan Washington Airports Auth. v. Citizens for the Abatement o f Aircraft Noise,

Inc., 501 U.S. 252, 271 (1991) (Congress m ay not use its power over Federal property to achieve ends by indirect 

means that it is forbidden to achieve directly); Frost & Frost Trucking Co. v. Railroad Comm'n, 271 U.S. 583, 

594 (1926) (State legislature cannot attach unconstitutional condition to privilege that it may deny). See also Authority

o f Congressional Committees to Disapprove Action o f Executive Branch, 41 Op. Att’y Gen. 230, 233 (1955) (Att’y 

Gen. Brownell) ( “ If the practice of attaching invalid conditions to legislative enactments were permissible, it is

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Section 609 o f the FY 1996 Omnibus Appropriations Act

the course of several Administrations, “ Congress may not use its power over appropriation of public funds ‘to attach conditions to Executive Branch appropriations requiring the President to relinquish his constitutional discretion in foreign 

affairs.’ ” Issues Raised by Provisions Directing Issuance of Official or D iplomatic Passports, 16 Op. O.L.C. 18, 28 (1992) (quoting Issues Raised by Foreign

Relations Authorization Bill, 14 Op. O.L.C. 37, 42 n.3 (1990) (quoting Constitutionality o f Proposed Statutory Provision Requiring Prior Congressional Notification fo r Certain CIA Covert Actions, 13 Op. O.L.C. 258, 261 (1989))).17

Indeed, it has long been established that the spending power may not be deployed to invade core Presidential prerogatives in the conduct of diplomacy.18 

As early as 1818, an attempt by Representative Henry Clay to use appropriations 

bill rider to compel the recognition of a South American government was criticized by other members of Congress as a violation of separation of powers principles, and it soon proved to be abortive.19 Then-Secretary of State (and later 

President) John Quincy Adams also urged constitutional objections to Clay’s proposal before President Monroe’s Cabinet:

Instead of admitting the Senate or House of Representatives to 

any share in the act of recognition, I would expressly avoid that 

form of doing it which would require the concurrence of those bodies. It was, I had no doubt, by our Constitution an act of the Executive authority. General Washington had exercised it in recognizing

evident that the constitutional system of the separability of the branches of Government would be placed in the 

gravest jeopardy.” ); Constitutionality o f Proposed Legislation Affecting Tax Refunds, 37 Op. Att’y Gen. 56, 61 (1933) 

(Att’y Gen. Mitchell) (“ This proviso can not be sustained on the theory that it is a proper condition attached to 

an appropriation. Congress holds the purse strings, and it may grant or withhold appropriations as it chooses, and 

when making an appropriation may direct the purposes to which the appropriation shall be devoted and impose 

conditions in respect to its use, provided always that the conditions do not require operation o f the Government 

in a way forbidden by the Constitution.” ); Memorial o f Captain Meigs, 9 Op. A tt’y Gen 462, 469-70 (1860) (Att’y 

Gen. Black) (concluding that appropriations bill that contained condition that money be spent only under supervision 

of congressionaJly-designated individual was invalid); William P. Barr, contribution to symposium on The Appropriations Power and the Necessary and Proper Clause, 68 Wash. U. L.Q. 623, 628 (1990) ( “ Congress cannot use 

the appropriations power to control a Presidential power that is beyond its direct control” ); Harold H. Koh, Why

the President (Almost) Always Wins in Foreign Affairs: Lessons o f the Iran-Contra Affair, 97 Yale L J. 1255, 1303 

n.218 (1988) (citing support for view that Congress acts unconstitutionally if it refuses to appropriate funds for 

President to cany out his enumerated constitutional responsibilities); Kate Stith, Congress’ Power o f the Purse, 

97 Yale L J. 1343, 1351 (1988).

17 See also The President's Compliance with the “Timely Notification" Requirement o f Section 501(b) o f the

National Security Act, 10 Op. O.L.C. 159, 169-70 (1986) (“ [WJhile Congress unquestionably possesses the power 

to make decisions as to the appropriation of public funds, it may not attach conditions to Executive Branch appropriations that require the President to relinquish any of his constitutional discretion in foreign affairs.” ).

,8This limitation on legislative power has been acknowledged by members of Congress See Orrin Hatch, contribution to symposium, What the Constitution Means by Executive Power, 43 U. Miami L. Rev. 197, 200-01 (1988) 

(“ constitutional foreign policy functions may not be eliminated by a congressional refusal to appropriate funds. 

The Congress may net, for example, deny the President funding to receive ambassadors, negotiate treaties, or deliver 

foreign policy addresses .... Congress oversteps its role when it undertakes to dictate the specific terms o f international relations.” ); Eli E. Nobleman, Financial Aspects o f Congressional Participation in Foreign Relations, 289 

Annals Am. Acad. Pol. & Soc. Sci. 145, 150 (1953) (citing remarks of Representative Darnel Webster, objecting 

on constitutional grounds in 1826 to appropriations rider that purported to attach instructions to United States diplomats).

19 See Edward S. Corwin, The President: Office and Powers 1787-1984, at 216 (5th rev. ed. 1984).

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Opinions o f the Office o f Legal Counsel in Volume 20

the French Republic by the reception of Mr. Genest. Mr. Madison 

had exercised it by declining several years to receive, and by finally 

receiving, Mr. Onis; and in this instance I thought the Executive 

ought carefully to preserve entire the authority given him by the 

Constitution, and not weaken it by setting the precedent of making 

either House of Congress a party to an act which it was his exclusive right and duty to perform. [20]

Accordingly, Congress may not attempt indirectly, through the use of its spending power, to control the exercise of the President’s exclusive right to grant or 

withhold political recognition. Section 609 is such an attempt; thus, it is an unconstitutional encroachment on the President’s power.

IV.

Because section 609 is, in our view, invalid, we regard it as being without 

legal force or effect.21

The past practice of the executive branch demonstrates its refusal to comply 

with unconstitutional spending conditions that trench on core Executive powers. 

Particularly pertinent in this regard is an opinion written in 1960 by Attorney 

General William Rogers for President Eisenhower concerning such an unconstitutional condition.22

Attorney General Rogers’ opinion dealt with a provision of a statute that directed that certain expenses of a State Department office be charged to certain 

appropriations, provided that all documents relating to activities of that office were 

furnished upon request to Congress. A related statute provided for termination 

of funds if all documents were not produced, unless the President certified that 

he had forbidden the disclosure of the documents to protect the public interest. 

The State Department refused to furnish a number of documents requested by 

a House subcommittee, and the President certified that he had forbidden their 

disclosure. The Comptroller General, interpreting the former statute as not incorporating a “ public interest” exception permitting the President to withhold the 

documents from Congress, directed that funds not be made available to liquidate 

obligations incurred from the following day forward. The Attorney General concluded that the statute should be construed to include a “ public interest” exception because, as applied under the circumstances, it would otherwise embody an 

unconstitutional condition. He based this conclusion in part on the reasoning that:

20 Quoted in id. at 216-17.

21 The invalidity o f section 609 does not, o f itself, undermine the validity of the Act as a whole, or cause any 

o f its other provisions to fail.

22Mutual Security Program— Cutoff o f Funds from Office o f Inspector General and Comptroller, 41 Op. A tt’y 

Gen. 507 (1960) (construing the Mutual Security Act o f 1959, 73 Stat. 253).

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Section 609 o f the FY 1996 Omnibus Appropriations Act

the Constitution does not permit any indirect encroachment by Congress upon this authority of the President through resort to conditions attached to appropriations such as are contended to be contained in . . .the act.23

Further, the Attorney General concluded that “ the Comptroller General’s view 

that the proviso . . . has cut off funds under the circumstances disclosed here 

is an erroneous interpretation of the meaning of this statute,” and that “ if this 

view of the Comptroller General as to the meaning of this statute is correct, the 

proviso is unconstitutional.” 24 He stated that, despite the Comptroller General’s 

view that appropriated funds had been cut off, the funds “ continue to be available 

as heretofore.” 25

Accordingly, we conclude that funds elsewhere appropriated in the Act for State 

Department diplomatic activities abroad may lawfully be obligated or expended 

for diplomatic relations with the Government of Vietnam if those funds are otherwise available for that purpose, without the President’s having to certify that Vietnam has met the conditions purportedly imposed by section 609.

WALTER DELLINGER 

Assistant Attorney General

Office o f Legal Counsel

“ Id. at 530. 

24 Id.

23 Id. at 531.

199